BVA9506291 DOCKET NO. 93-07 480 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for degenerative disc disease and arthritis of the lumbosacral spine. 2. Entitlement to an increased (compensable) rating for lumbosacral strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from June 1958 to June 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 1991 decision by the Department of Veterans Affairs (VA), St. Petersburg, Florida, Regional Office (RO), which denied service connection for a herniated lumbar disc with history of diskectomy L5 - S1 and a compensable rating for service-connected lumbosacral strain. The veteran testified at a hearing at the RO in July 1992. The matter of entitlement to service connection for disc disease and arthritis of the low back appears to be "inextricably intertwined" with the matter of entitlement to an increased rating for lumbosacral strain, whose rating may include arthritic and other back symptoms. Hence, the service connection issue will be addressed by the Board. Harris v. Derwinski, 1 Vet.App. 180 (1991). In view of the favorable decision that follows, there is no prejudice in handling the service connection matter. Bernard v. Brown, 4 Vet.App. 384 (1993). Appellate consideration of the issue of entitlement to a compensable rating for lumbosacral strain is deferred pending completion of the development requested in the Remand section of this decision, which follows the Board's order. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his degenerative disc disease of the lumbosacral spine began during active service. He asserts, in essence, that his post-service herniated disc is the result of underlying lumbosacral disc disease, which has been present for many years and which began while he was on active duty. In support of his claim, he states that the types of low back pain that he has experienced in and after service include sharp, radiating pain. He points out that his in-service duties included twisting, turning, and crawling in a submarine, and lifting and argues that the RO failed to consider a reference to disc disease in his service medical records. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence, and for the following reasons and bases, it is the decision of the Board that the evidence is in relative equipoise, and therefore supports the claim for service connection for degenerative disc disease and arthritis of the lumbosacral spine. FINDING OF FACT The veteran was seen on numerous occasions while on active duty for low back pain, which included sharp, radiating-type discomfort; his degenerative disc disease and arthritis of the lumbosacral spine were radiographically demonstrated within a few years after his separation from 30 years of active service; his degenerative disc disease and arthritis of the lumbosacral spine began as a result of service. CONCLUSION OF LAW Degenerative disc disease and arthritis of the lumbosacral spine are the result of disability incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty from June 1958 to June 1988. His service medical records show that he was seen on numerous occasions for low back, left buttock, and left thigh pain. He was seen on a number of occasions from September to December 1978 for the sudden onset of low back and posterior left thigh pain, and the diagnoses at that time included spondylolysis of L5. A herniated nucleus pulposus was also suspected but not confirmed. He was also seen on several other occasions from 1980 to 1983 for similar complaints. He was treated in June 1983 for neck symptoms, and history obtained at that time included hearing a "pop" in his back. Clinical findings included tenderness in the back region. He gave a history of sharp pain in his left low back region when seen in September 1983, and clinical findings at that time included muscle spasm in the left back region. When seen in March 1986, he gave a history of having sustained a back injury 10 years earlier. His separation examination in April 1988 was negative for any findings indicative of a low back disability; clinical evaluation of his musculoskeletal system was reported as normal. The veteran underwent a VA medical examination in April 1989. History obtained at that time included low back pain in 1968 and back pain with bending over. Clinical findings included flexion of the trunk limited to 60 degrees, with a fair progression of movement of the spine and fingertips extending to 7 inches from the toes. No pertinent diagnosis was recorded. An RO decision in June 1989 granted service connection and assigned a noncompensable rating for lumbosacral strain. A VA X-ray examination of the veteran's lumbosacral spine in May 1990 showed a localized spur change at L4-5 of moderate degree and minimal marginal spurs elsewhere. The radiological impression was minimal to moderate arthritic change. The veteran was seen at a naval hospital in March 1991 for evaluation of the sudden onset of right leg pain after sneezing several days earlier, which was preceded by milder symptoms of one month's duration. Clinical findings included limitation of motion of the lumbar spine and positive straight leg raising on the right. An X-ray examination was reported as showing mild degenerative joint disease. The clinical assessment was acute lumbosacral strain. He was referred to physical therapy for acute sciatica of the right leg. The veteran was seen at a naval hospital in late March 1991 for evaluation of right buttock and posterior thigh pain of two weeks' duration. The assessment included right sciatica. Michael J. Broom, M.D., reported in an April 1991 statement that the veteran had lumbar disc herniation at the L5 - S1 level which was eccentric to the right. It was noted that that diagnosis correlated with his symptoms of right leg pain. A magnetic resonance imaging (MRI) study to confirm the diagnosis was recommended. A naval X-ray examination of the veteran in April 1991 revealed degenerative joint disease characterized by anterior spurs and some facet sclerosis. There was also some straightening of the usual curve. The impression was degenerative joint disease. A CT scan of the lumbar spine at that time revealed a herniated disc on the right at L5 - S1 (correlation clinically and with other studies was suggested) and bulging discs at L2-3, L3-4, and L4-5. An MRI of the lumbar spine performed shortly thereafter revealed right lateralized posterior protrusion of disc material at L5 - S1 level, compressing the right S1 nerve root against the ipsilateral moderately hypertrophied facet joint. Minimal annular bulging and minimal bilateral facet disease were also seen from L3 through S1 Additional naval hospital records show that the veteran underwent a right L5 - S1 diskectomy in May 1991. The veteran underwent a VA orthopedic examination in October 1991. He gave a history of a spontaneous onset of low back pain in 1963, which responded in a week to conservative measures and, during his 30 years of naval service, 4 or 5 similar episodes, the last one having been in 1987. The history of his more recent onset of sudden, sharp pain in his lower back with radiation into the right leg and diskectomy of L5 - S1 for a ruptured disc was summarized. Following the clinical evaluation, the impression was history of diskectomy at L5 - S1 with essentially normal back examination. An X-ray examination of the lumbar spine revealed very mild hypertrophic changes in the lower lumbar vertebral bodies; the intervertebral disc spaces appeared preserved. The veteran was seen at a naval hospital clinic in March 1992 for low back pain. The veteran testified at a hearing conducted at the RO in July 1992 that he had had numerous episodes of low back pain while on active duty, including sharp, radiating pain from his back into the buttocks and lower extremities, with accompanying numbness of two of his toes. He recalled that he was told by a physician while on active duty that he had a sciatic nerve problem and degenerative disc disease. He did not recall a specific low back injury, but said that his duties during service included lifting heavy objects and crawling, twisting and turning in small spaces while aboard a submarine. The veteran was seen at a naval clinic in June 1993 for evaluation and treatment of low back pain of 10 days' duration. Hayat Heriva, M.D., reported in an August 1994 statement that the veteran was seen on several occasions in July 1994 for low back sprain and pain. Clinical findings included muscle spasm with forward bending beyond 65 degrees, no back extension, and marked limitation of lateral spine motion. II. Analysis The veteran's "claims" are well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are not inherently implausible. All relevant facts concerning the service connection claim have been properly developed and, therefore, VA's duty to assist him in developing evidence pertinent to this claim has been satisfied. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Where a veteran served 90 days or more during a period of war and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. While the veteran was seen on numerous occasions for low back and thigh pain while on active duty, and a herniated disc was suspected on at least one occasion, a definitive diagnosis of a herniated disc, degenerative disc disease or arthritis of the lumbosacral spine was not made during service, nor was arthritis of the lumbosacral spine diagnosed within one year of his separation from service. Nevertheless, service connection may still be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Further, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. Rather, the presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not otherwise warrant service connection without their aid. 38 C.F.R. § 3.303(d); Douglas v. Derwinski, 2 Vet.App. 103, 108-109 (1992). The disease need not be diagnosed in the presumptive period. If it is not, however, there must "then [be] shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis." 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet.App. 466, 469 (1991). Here, the in-service record is replete with low back complaints. Lumbosacral strain is already acknowledged to have been one of the root causes of the back complaints. However, disc pathology was also suspected as part of the problem long before the veteran retired from service. Inflammatory pathology was also thought to be a cause of the recurring back complaints. Hence, it is my judgment that the arthritic pathology of the low back demonstrated after service is causally linked to the lengthy period of service, given the numerous times he was evaluated for low back pain. Essentially the same rationale applies to degenerative disc disease of the spine. The testimony is consistent with the medical evidence which depicts chronic back pathology of varying descriptions in service. At the very least, reasonable doubt is created. As the evidence is in relative equipoise, the benefit of the doubt doctrine is applicable, and service connection for degenerative disc disease and arthritis of the lumbosacral spine is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for degenerative disc disease and arthritis of the lumbosacral spine is granted. REMAND In view of the grant of service connection for degenerative disc disease and arthritis of the lumbosacral spine, the remaining issue is REMANDED. The RO must adjudicate the issue of entitlement to a compensable rating for lumbosacral strain with degenerative disc disease and arthritis of the lumbosacral spine. All indicated development, including obtaining pertinent records of treatment and orthopedic and neurologic examinations, should precede the RO's adjudication. The examiners should conduct range of motion testing, measured in degrees, as well as X-ray study of the spine. The examiners should indicate whether there is characteristic pain on motion, muscle spasm on extreme forward bending, loss of lateral spine motion, or severe lumbosacral strain. The examiners should also indicate whether the disc pathology is mild, moderate, severe, or pronounced degree. The claims folder must be made available to examiners for review. If the veteran is dissatisfied with the decision, he and his representative should be issued a supplemental statement of the case, and they should be provided an opportunity to respond. Then the case should be returned to the Board. M. CHEEK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. The above remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).